The opinion of the court was delivered by: Surrick, J.
Presently before the court is the Motion In Limine of Countrywide Home Loans, Inc. and Bank of New York to Preclude New, Unpled and Untimely Claims Raised by Plaintiff and to Exclude Expert Report and Trial Testimony of William Hart. (Doc. No. 59.) For the following reasons, the Motion will be granted in part and denied in part.
Plaintiff filed the Amended Complaint in this matter on October 14, 2008. (Doc. No. 35.) The Amended Complaint seeks relief from a mortgage Plaintiff entered into with Defendant Ameribanq in October 2004. (Doc. No. 35 ¶ 5.) Among other things, the Amended Complaint alleges that Defendant Ameribanq failed to make material disclosures in connection with the loan in violation of the Truth-in-Lending Act ("TILA"), 15 U.S.C. §§1601, et seq. (See Doc. No. 35 ¶¶ 18-19.) In particular, the Amended Complaint alleges that Defendant Ameribanq failed to disclose certain material finance charges. (Id. ¶ 18.)
On September 29, 2008, a Scheduling Order was issued in this matter. (Doc. No. 33.) That Order set January 14, 2009, as the date by which Plaintiff had to submit expert reports to Defendants. (Id. ¶ 2(a).) Plaintiff did not submit an expert report to Defendants by that date.
Months passed, and on March 16, 2009, Defendants moved for summary judgment. (Doc. No. 46.) Plaintiff filed a Response in Opposition on March 30, 2009. (Doc. No. 51.) Plaintiff attached to her response the affidavit of William C. Hart, an expert witness (the "Hart Report"). (See Doc. No. 52, Hart Aff.) The following day -- approximately eleven weeks after the Scheduling Order's deadline to file an expert report -- Plaintiff filed a motion requesting an enlargement of time to present an expert report. (Doc. No. 53.) Defendants opposed Plaintiff's motion for enlargement of time (Doc. No. 55) and, on April 9, 2009, filed the instant Motion in limine to preclude the expert from testifying at trial (Doc. No. 59).
A. New, Unpled and Untimely Claims
Defendants argue that Plaintiff's Response in Opposition to their Motion for Summary Judgment raises two previously unpled claims. (Doc. No. 59 at 6.) Defendants' arguments are not persuasive because they attempt to classify Plaintiff's legal arguments as new claims. First, Plaintiff's argument that "Ameribanq erred in its disclosure of the finance charges in an amount in excess of the applicable tolerance after foreclosure has been initiated of $35," (id.) is not a new claim; rather, it is one theory supporting the claim set out in Count II of the Amended Complaint. (See Doc. No. 35 ¶ 18.) In asserting the dollar threshold for the materiality of finance charge disclosures, Plaintiff is articulating a legal argument about what dollar amount the Court should consider material. Given the broad language of the Amended Complaint, which identifies "finance charges" generally and not specific charges, there is nothing improper with Plaintiff's approach.
The same holds true for Defendants' attempt to classify Plaintiff's argument that "she was overcharged for title insurance in the amount of $214.90" as a new and untimely pled claim. (Doc. No. 59 at 7.) This argument also falls within the scope of the allegation in the Amended Complaint that Defendant Ameribanq failed to make material disclosures. Thus, the argument itself is not untimely and we will not preclude Plaintiff from arguing it.
"The Third Circuit has delineated four factors to consider when deciding whether to exclude evidence due to failure to comply with an order." Shalley v. City of Phila., No. 94-5883, 1996 U.S. Dist. LEXIS 5690, at *4 (E.D. Pa. Apr. 30, 1996) (excluding untimely expert report filed approximately six weeks after deadline established by the court's scheduling order). The four factors are:
(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court, and (4) bad faith or willfulness in failing to comply with the district court's order.
In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 791 (3d Cir. 1994) (citing Meyers v. Pennypack Woods Home Ownership ...